Spoliation of Evidence in the Real World

Last Friday, a federal judge in Washington D.C. issued an opinion on whether to impose discovery sanctions on Marriott that I think is instruction for personal injury lawyers dealing with defendants that destroy evidence.

In Mahaffey v. Marriott, plaintiff’s lawsuit alleged that while exiting an elevator in a motorized scooter, the elevator violently lurched, throwing him off the scooter, causing the scooter to land on top of him, resulting in serious injury. (No, I can’t picture it either.)

I’m assuming the injuries are serious. He appears to have hired a Florida lawyer who retained local counsel here. Usually people are not going through that effort unless they have a real case, although some of the facts I’m about to get to will make you question just how badly plaintiff was injured.

So plaintiff’s attorney puts Marriott on notice of the claim. The letter was sent by certified mail. Lawyer gets back a green card, the whole nine yards. (Spoiler alert: The court says, incredibly to me, that “Marriott maintains that it has no evidence that it received the demand letter leaving open the possibility that it received an empty envelope.” Wow. The court backs off this later in the opinion. But a judge saying that I might have sent an empty envelope by certified mail is the very reason why I live a paranoid life. And it lets you know the plaintiff is going to lose) The letter sets forth the name of the plaintiff and the date of the accident. It did not – and I can’t tell you why – tell Marriott the name of the hotel involved in the accident.

Still, Marriott arguably knew the score well enough to set off a “keep the evidence” alarm. Plaintiff says that a bell hop was at the scene and saw the injuries. Plaintiff told the front desk about the injuries immediately after the accident and a security guard came up. The story gets a little weird from here. Plaintiff also claimed that he called the front desk several more times over the next couple of days to obtain medical assistance. I thought this was a serious injury case. When I’m seriously injured to the point where I’m going to make a federal case out of it, I’m not calling the front desk for medical assistance. Who does that?

Let’s get to the spoliation. Before Marriott was hit with discovery, a broken sprinkler head flooded a room where Marriott kept a video of the accident. Spoliation motion follows.

Marriott has some strong points on this. First, no one knows exactly whether any documents relevant to this action were destroyed. That is a big deal that passes by. Why don’t we know? Was there really enough discovery done on the destruction? More importantly, there is no evidence that Marriott’s negligence caused the destruction. If some arsonist came in and started a fire, you could not pin that on Marriott and plaintiff’s lawyers seem to have no evidence about what happened. Either they didn’t ask or Marriott would not give them a straight answer.

One other important point. This was unlikely to be the magic elixir for plaintiff’s case, the video that shows it all. The video did not even capture the accident. The only purpose was to help the plaintiff find witnesses.

I think that the court should have discussed more the alleged contacts with Marriott that made clear plaintiff was injured. I think that should have put them on notice of the problem. I’m not sure how that issue would flush out. What did the bell hop see? Ignoring that, as the court did, I agree with the opinion.

Another interesting issue in the case is how spoliation would work. There is also an elevator defendant in the case – and, somehow, T. Rowe Price – that clearly did nothing that would lead to a spoliation instruction. How would the court impose a spoliation instruction against one defendant and not the other? The court didn’t have to address this problem in this case but you can see what a mess trying to give a fail ruling would be in that context if there was a spoliation instruction.

Illinois deals with a similar set of crazy facts, only the Illinois Supreme Court allows the Defendants to destroy the evidence without consequence when the CEO of the Defendant states “I assumed a workers compensation claim would occur, but I never thought of a personal injury lawsuit…”

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